Factsheet 42 - Pre Action Protocol

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Pre Action Protocol

Commencement:

The Pre Action Protocol came into force on 6 April 2009 as part of the 49th Amendment to the Civil Procedure Rules.

Background:

This protocol is important to landlords and agents as it will apply to possession and money-claim court actions. Specific area protocols have been part of the Civil Procedure Rules (CPR) for many years. These Rules control the operation of the court system and those who use it. However, the significance and importance of these are that they apply to ALL cases other than those where there are specific protocols. The objectives of pre-action protocols are to encourage the exchange of early and full information about the prospective legal claim, enable parties to avoid litigation by agreeing a settlement of the claim or by using a form of Alternative Dispute Resolution (ADR) before the commencement of any proceedings and to support the efficient management of proceedings where litigation cannot be avoided. Protocols are intended to be enforced by the courts using costs and other penalties.

Scope of new Protocol:

This protocol will apply to all potential legal actions not specifically covered by individual area protocols and those specifically excluded in the Protocol. For more details of these areas and the rules as a whole see the CPR website at www.justice.gov.uk/civil/procrules_fin/menus/rules.htm. All money claim and possession actions will be covered by these catch-all provisions. The impact on section 21 and 8 claims will be limited.

Principles of this protocol

The parties should before starting an action:

  1. exchange sufficient information about the matter to allow them to understand each other’s position and make informed decisions about settlement and how to proceed, and
  2. make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.

The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

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